updated 11:10 pm EDT, Fri September 16, 2011

Judge 'erred' in challenging constitutionality

A federal appeals court has reversed a federal judge's slashing of damages against college student Joel Tenenbaum, who was found guilty of sharing 30 music tracks on Kazaa -- and reinstated the jury's award of $675,000 in damages, or $22,500 per song, reports Wired reports. The previous judge, Nancy Gertner of Boston, had reduced the jury's verdict to 10 percent, or $67,500 ($2,250 per song). The appeals court ruled that Gertner should have used a different approach.

The court ruled that Gertner went too far in justifying the reduction of the award by challenging the constitutionality of the Copyright Act's damages provisions. Gertner called the provision "unconstitutionally excessive," echoing the words of Judge Michael Davis in the Jammie Thomas-Rasset case in Minnesota, who slashed a similarly large RIAA award and said it was "so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable." In that case, Judge Davis reduced the jury's $1.5 million award to $54,000 over the sharing of 24 songs, also on Kazaa.

The appeals court did not necessarily agree with the jury award or side with the plaintiffs, but the Obama administration -- arguing on behalf of the original jury verdict -- argued that Gertner erred in commenting on the fairness of the law, and it was with that point that the court agreed. It ruled that Gertner should have instead employed a non-constitutional power of "remittitur" to set a possible reduced amount. The RIAA and Sony -- the plaintiffs in the Tenenbaum case -- could then have either accepted the reduced award or rejected it, whereupon a new trial would have ensued.

The RIAA maintains that judges do not have authority to reduce damage awards in Copyright Act cases at all -- but have not gone to court specifically to challenge that authority. Only two cases have gone to trial of the thousands the RIAA has launched against file-sharers -- Thomas-Rasset and now Tenenbaum -- and in both cases the jury awarded large monetary damages that were later reduced (citing the excessive nature of the penalty versus the crime) but then later reversed by appeals courts. The Copyright Act allows damages of up to $150,000 per song.

Despite its record of settlements and two jury victories, the RIAA has largely abandoned the tactic of suing individual file-sharers and has instead engaged in a campaign to work with ISPs to warn or cut off internet service for chronic offenders. One reason may be that the modest out-of-court settlements -- usually a few thousand dollars -- was unprofitable compared to the cost of engaging in legal action.

Wired correctly points out that had Judge Gertner used the remittitur power in the Tenebaum case, a potential for endless trials could arise -- where the judge reduces awards on remittitur and the plaintiff repeatedly refuses to accept it, initiating a new trial each time. There is no word yet on whether Tenenbaum will appeal the latest decision. [viaWired]